Emergency Ordinance Backfires on Gun Rights!

The Second Amendment says “the right of the people to keep and bear arms, shall not be infringed”. The Washington State Constitution says it even stronger, “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired.” However, two of our current County Commissioners think otherwise (Stuart and Boldt). An Ordinance that was unanimously passed in October 2005 by the three Commissioners at the time, Marc Boldt, Steve Stuart and Betty Sue Morris, determined that during a declared emergency, if they thought you “intend” to cause bodily harm you can’t even possess, let alone carry a gun (or anything else that could be construed as a weapon). Mind you, possess means ‘own’ therefore not even able to keep in your own home or anywhere else. This Ordinance 2005-10-03, Section 2.48A.090 (i) references this.

“An order prohibiting the carrying or possession of firearms or any instrument which is capable of producing bodily harm and which is carried or possessed with intent to use the same to cause such harm; provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties”.

(BLOG NOTE: It has been claimed that section 2.48A.090 (i) is no longer in effect, but it is still written in the code as of this posting)

Marc Boldt Dist. 2

You must understand, that this ordinance does not say specifically that they can confiscate your firearm (or other instrument) but, in order to understand this completely, you must read between the lines. The intent IS to disarm you. Of course, the most important time to carry your gun is at times of unrest and an emergency of this magnitude to declare it as such would be such a time. A natural disaster or a terrorist attack and all things in between all qualify. These are the times when citizens are most vulnerable. So, the disaster occurs, the state of emergency is declared and you strap on your gun. We all are well aware that looting and chaos very often accompany these events. In fact, case in point, during Hurricane Katrina, in an unconstitutional and idiotic move on the elected officials part, they removed, (and at times, forcefully) the guns of the citizens when they needed them most. Many, young and old, were injured by the very officers doing the confiscating.

NRA video of gun confiscation in New Orleans.

Marty Hayes, a well-known firearms instructor and owner of Firearms Academy of Seattle indicated there were three issues directly relating to this Ordinance.

1) The 4th amendment constitutionality which gives “the right of the people to be secure in their person, houses, papers, and effects against unreasonable search and seizures, shall not be violated…” This ordinance would directly violate this with the word “possess” inserted.

2) The framers of the Constitution were clear that they meant that Lawfully Armed Citizens have the right to keep and bear arms in states of emergency, hence the 2nd Amendment.

3) Being the Ordinance is profoundly unconstitutional, some that hold their 2nd Amendment rights dear, would defend their rights to the death. Would we really want to put our police and deputies in such harms way, especially when it is not legal?

Steve Stuart Dist. 3

So, back to Clark County… At what point and by whom would the decision be made that the reason I carry my gun was to cause bodily harm. What factors would they use to determine this “intent”. Precisely how could anyone tell what my intent was? As the law stands now, and by the way, what most licensed to carry a concealed gun (CPL) already know is how to legally carry, when to legally carry and where to legally carry. My intent at all times of carrying a gun would only be what it would take to defend my person should the need arise. If I am carrying a legal firearm and it is necessary to use it in self-defense, then the very definition of why I am carrying is to produce bodily harm, doesn’t it? In all of the hours of training with firearms, I have always been told if I carry or possess a gun, I must be prepared to use it to stop the threat. They never advocate merely showing it to my attacker to accomplish this. I must be prepared to inflict harm to stop the threat, in some way or another, fatally if need be, to defend myself. So there you go, my intent is always to stop bodily harm to myself however I can. Does that then give them the “right” to confiscate my gun? According to this ordinance, I think so.

One note about the timing of the passage of this Ordinance, it was adopted October 3, 2005, merely five weeks after the catastrophic Hurricane Katrina fiasco in New Orleans. What does the timing of this say?

By July 2006, the NRA was a key player in protecting the Second Amendment rights of citizens in the country. They strongly encouraged legislation that was passed with broad bi-partisan margins of 322-99 in the House and 84-16 in the Senate that prohibits federal, state and local authorities from confiscating lawfully owned firearms during declared states of emergencies; the “Disaster Recovery Personal Protection Act” (HR 5013). The law now insures that law-abiding gun owners cannot be disarmed by any state or local governments during any declared emergency.

And, to add injury to insult, the same ordinance also goes so far as to state that all business establishments where firearms and/or ammunition for firearms are sold be closed and that all sales, distribution or even giving away of firearms and/or ammunition cease. (2005-10-03-2.48A (g)). You wonder why citizens have decided that stocking up and storing ammunition is a mighty fine idea. Because, when you need it most, your government (in the name of protection) has decided you don’t.

Government today has been over-reaching their authority almost on a daily basis. As in this ordinance, they say the regulations and restrictions are to “protect the public health, safety and welfare”. According to this Emergency Ordinance, the Chair of the County Commissioners is the one that calls for the emergency status. That Chairperson is currently Marc Boldt, the very one that made the original motion (meeting minutes) to pass these unconstitutional ordinances in the first place and absolutely infringes on your Second Amendment rights. Are you good with that??

I suggest we take this to our County Commissioners and ask them to restore our Second Amendment Rights. The laws on the books already have the capability of arresting someone whom is breaking the law. Carrying your firearm in times of chaos does not meet that standard.

There is an election for County Commissioners this November. There are good candidates out there running for these positions that will absolutely defend your right to bear arms. David Madore and Tom Mielke are the two that I am confident will do so. We need people in elected positions that will support and defend our constitutions, not those that try to circumvent them. The choice is clear.

Nullification, in United States constitutional history, is a legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory of nullification never has been legally upheld. Rather, the U.S. Supreme Court has rejected nullification, finding that the states do not have the power to nullify federal laws.

The theory of nullification is based on a view that the States formed the Union by an agreement (or “compact”) among the States, and that as creators of the federal government, the States have the final authority to determine the limits of the power of that government. Under this, the compact theory, the States and not the federal courts are the ultimate interpreters of the extent of the federal government’s power. Under this theory, the States therefore may reject, or nullify, federal laws that the States believe are beyond the federal government’s constitutional powers. The related idea of interposition is a theory that a U.S. State has the right and the duty to “interpose” itself when the federal government enacts laws that the state believes to be unconstitutional. A more extreme assertion of state sovereignty is the related action of secession, by which a state terminates its political affiliation with the Union. Thomas Jefferson and James Madison set forth the theories of nullification and interposition in the Kentucky and Virginia Resolutions in 1798.

The theory of nullification has been rejected repeatedly by the courts. The courts have found that under the Supremacy Clause of the Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws.

Between 1798 and the beginning of the Civil War in 1861, several states threatened or attempted nullification of various federal laws. None of these efforts were legally upheld. The Kentucky and Virginia Resolutions were rejected by the other states. The Supreme Court rejected nullification attempts in a series of decisions in the 19th century. The Civil War ended most nullification efforts.

In the 1950s, southern states attempted to use nullification and interposition to prevent integration of their schools. These attempts failed when the Supreme Court explicitly rejected nullification in Cooper v. Aaron, again holding that the states may not nullify federal law.

UNQUOTE

Conversely, the State is the final arbitrator on a County Ordinance like this one. The County cannot exceed State Law or modify Federal law any more than the State can simply ignore or exceed a Federal Law, at least the way the US Constitution has been Amended and interpreted by SCOTUS to date. The most effective example of nullification in action is jury nullification, where a jury can refuse to convict a person of a law they clearly understand is unjust and unconstitutional, just like this one.

But you have to get a case into court, first.

Unfortunately an Ordinance like this one stays on the books until someone calls attention to it, or challenges it in court. Sometimes a good kick in the ass is just what a County Commissioner needs, and this thread ought to serve as that now, and remove this clearly unconstitutional law that could not be enforced if anyone wanted to.

Good article though. Well written and presented, and the topic is certainly worth talking about.